APPORTIONMENT

APPORTIONMENT

The process by which legislative seats are distributed among units entitled to representation; determination of the number of representatives that a
state, county, or other subdivision may send to a
legislative body. The U.S. Constitution provides
for a census every ten years, on the basis of which
Congress apportions representatives according to
population; each state, however,must have at least
one representative. Districting is the establishment
of the precise geographical boundaries of each such
unit or constituency. Apportionment by state
statute that denies the rule of ONE-PERSON, ONE-ONE VOTE
is violative of EQUAL PROTECTION OF
LAWS.

Also, the allocation of a charge or cost such as
real estate taxes between two parties, often in the
same ratio as the respective times that the parties
are in possession or ownership of property during
the fiscal period for which the charge is made or
assessed.

Who are to be the electors of the Federal Representatives?
Not the rich more than the poor; not the learned more than the ignorant;
not the haughty heirs of distinguished
names, more than the humble sons of obscurity
and unpropitious fortune. The electors
are to be the great body of the people of the
United States (JAMES MADISON, The Federalist
No. 57).
The difference most relied upon, between
American and other republics, consists in the
principle of representation (James Madison,
The Federalist No. 63).
James Madison and his fellow founders of
the United States of America sought many
objectives as they framed the U.S. Constitution.
Among the goals these champions of democracy
fought for was the notion of equal representation
in government, by congresspeople, for citizens
of the United States. To ensure that equal
representation occurred, the founders proposed
that the U.S. population be counted at regular
intervals with a census. They later agreed, in the
Great Compromise of 1787, that congressional
representation should be assigned—in other
words, apportioned—to various regions of the
country based on a total population standard.
Both Article 1, Section 2, Clause 3, and
Amendment 14, Section 2, of the Constitution
provide that representatives shall be apportioned
among the states according to their
respective numbers and that a population count
will be taken by census every ten years. Apportionment
requires that each state’s total population
be divided by the population of “the ideal
district” to determine the appropriate number
of representatives. The population of an ideal
district, for purposes of federal apportionment,
is defined as the total population of the state (as
determined by census) divided by one hundred
(for the House of Representatives), or by 50 (for
the Senate).
In the centuries that followed the United
States’s adoption of the Constitution, apportionment
for the federal Congress has been
based on total population—with the exception
that a slave, until the Civil War, was considered
property and thus counted only as three-fifths of
a white person. Efforts to limit federal congressional
apportionment to only people who are
citizens or voters have been defeated, because
the exclusion of groups such as illegal ALIENS,
nonvoters, and children could significantly
affect some areas of the country, since some
states have large populations of these groups.
Shifting political power away from an area
means fewer legislators to demand a fair share of
government resources for that area.

One such effort to exclude these groups,
which occurred during the 1866 debates over
the passage of the FOURTEENTH AMENDMENT,
ultimately led to Congress’s voting to continue
basing apportionment on total population and
to count the “whole number of persons in each
state.” In contrast, state legislatures have only
been required to be based substantially on population
since 1964 (REYNOLDS V. SIMS, 377 U.S.
533, 84 S. Ct. 1362, 12 L. Ed. 2d 506). In 1968,
the U.S. Supreme Court extended this requirement
to municipal governments as well (Avery v.
Midland County, 390 U.S. 474, 88 S. Ct. 1114, 20
L. Ed. 2d 45).

Apportionment is related to, but is not the
same as, the electoral system and the districting
process: apportionment is the manner in which
representation is distributed; the electoral system
is the way an individual representative is elected;
and the districting process establishes the precise
electoral boundaries of a representative’s district.
Apportionment for the U.S. Congress,
which consists of the Senate and the House of
Representatives, has always been determined by
the Constitution. Each state is assigned two senators,
who were originally elected by state legislatures
but since the adoption of the
SEVENTEENTH AMENDMENT in 1913 have been
chosen by direct voter election.

Membership in the House of Representatives
is also assigned to the states and is apportioned
according to population, with each state
being constitutionally guaranteed at least one
representative. The House of Representatives
grew proportionally with the population of the
United States until 1912, when the House froze
its size at 435 members. Since 1941, the CENSUS
BUREAU has used the system of equal proportions
to determine how many of the 435 representatives
each state is entitled to have. This method, developed in 1920 by Professor Edward
V. Huntington, of Harvard University, establishes
the smallest possible difference between
the representation of any two states, since a
state’s fair share of representatives will rarely be
a whole number. The 1941 federal statute 2
U.S.C.A. §§ 2a and 2b provides that
under the equal proportions method, the priority
list of states or counties among which
Representatives in excess of one per state or
county are to be allocated is obtained by
dividing the population of each state or
county by the geometric mean of successive
numbers of Representatives.

Congress must decide how to treat the fractional
components whenever it reapportions
congressional seats based on new census data.
This decision affects the distribution of only a
few seats in Congress and the ELECTORAL COLLEGE,
but in closely contested matters, such as
the presidential election of 1876, those seats
could mean the difference between victory and
defeat. (The electoral college is the body of electors
of each state chosen to elect the president
and vice president. Apportionment affects the
electoral college because it influences the number
of electoral votes coming from various areas
of the country.) Each state legislature is responsible
for establishing the district boundaries of
the congressional seats apportioned to the state
by the federal government.

From 1842 to 1911, Congress required that
all congressional districts be of compact and
connecting territory. That stipulation was not
continued after 1912, and by the 1960s, the districts
within some states differed greatly in size.
These disparities were caused in some cases by
gerrymandering, which is the process of drawing
boundaries for election districts so as to give
one party a greater political advantage. Large
disparities led a group of urban Tennessee voters
to bring suit against their state’s electoral commission
on the ground that the apportionment
of the legislature was unfair. The Supreme
Court’s March 1962 decision in favor of the voters
in BAKER V. CARR, 369 U.S. 186, 82 S. Ct. 691,
7 L. Ed. 2d 663, established the rule that a citizen
may bring suit against legislative malapportionment
when it deprives that citizen of equal protection
under the law as guaranteed by the
Fourteenth Amendment. Previously, in Colegrove
v. Green, 328 U.S. 549, 66 S. Ct. 1198, 90 L.
Ed. 1432 (1946), the Court had refused to accept
jurisdiction in apportionment cases.
Although the Supreme Court’s decision in
Baker was limited, it did rule that if a system
other than one based on population is used for
apportionment, the resulting districts must not
be ARBITRARY or irrational in nature. In 1964,
the Supreme Court extended Baker by ruling in
Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11
L. Ed. 2d 481, that legislative districts for the
House of Representatives must be drawn so as to
provide “equal representation for equal numbers
of people,” a concept often referred to as the
one-person, one-vote standard. Later that same
year, in lawsuits directly involving 15 states, the
Supreme Court ruled in Reynolds v. Sims, 377
U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, that
districts for state legislatures must also be substantially
equal in population. Further extending
the principle, the Court ruled in Avery v. Midland
County, 390 U.S. 474, 88 S. Ct. 1114, 20 L.
Ed. 2d 45 (1968), that if county, city, and town
governments elect their representatives from
individual districts, the districts must be substantially
equal in population.

Other individuals and states have subsequently
challenged the method of apportionment
used in the United States when that
method has proved unfavorable for them. For
example, in Franklin v. Massachusetts, 505 U.S.
788, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992),
Massachusetts and two of its registered voters
filed an action against Secretary of Commerce
Barbara B. Franklin, alleging, among other
things, that the decision to allocate overseas
employees was inconsistent with the Constitution.
In June 1992, the Court reversed a federal
district court decision in favor of Massachusetts,
ruling that the allocation of overseas federal
employees to their designated home states was
consistent with the usual-residence standard
used in early censuses and served the purpose of
making representation in Congress more equal.
The state of Montana sued the U.S. COMMERCE
DEPARTMENT, following the 1990 census,
when it and 11 other states each lost one House
seat. In seeking to keep the two seats it had held
since 1910, Montana argued that the method of
equal proportions was unconstitutional because
it left the state with a single congressional district
of 803,655 people—a number almost 40
percent larger than “ideal district size,” which is
a national average of 572,466 people. Montana
also alleged that the variance between the single
district’s population and that of an ideal district
could not be justified under the one-person,one-vote standard developed in Wesberry. The
Montana case was appealed to the U.S. Supreme
Court, which in March 1992 unanimously
upheld the method Congress uses to reallocate
congressional seats among the states after a census
(United States Department of Commerce v.
Montana, 503 U.S. 442, 112 S. Ct. 1415, 118 L.
Ed. 2d 87).

The political impact of the census on congressional
apportionment was made apparent
when the Commerce Department proposed that
statistical sampling be used for the 2000 census.
(Statistical sampling is a method of surveying a
subset of a larger population and applying the
findings to the larger group.) Republicans in
Congress reacted hostilely to this proposal from
the Democratic administration of President
BILL CLINTON, fearing that the proposed statistical
sampling of hard-to-count persons (racial
and ethnic minorities, poor persons, children,
illegal aliens, renters, etc.) would favor large
urban areas that were aligned with the DEMOCRATIC
PARTY. Members of Congress filed suit to
block the use of sampling and the Supreme
Court agreed with their position in Commerce
Dept. v. U.S. House of Representatives, 525 U.S.
316, 119 S.Ct.765, 142 L.Ed.2d 797 (1999). The
Court held that the Census Act, which was first
enacted in 1954 (and amended a number of
times since then), expressly prohibited the use of
sampling to determine populations for congressional
apportionment purposes.

This ruling did not end the controversy over
what constituted sampling. Following the 2000
census, the state of Utah filed suit against the
Commerce Department, alleging that it should
have increased its congressional representation
from three seats to four.According to the census,
the state had achieved a dramatic 30 percent
population growth in ten years. Despite this
growth, the number of representatives in the
state did not increase. North Carolina, however,
did pick up an additional seat through a statistical
method called imputation. This method permits
the Census Bureau to impute, or estimate,
the number of members in a household after
census takers make repeated efforts to make
direct contact. Comparing the numbers of
imputed residents of Utah and North Carolina,
Utah realized that if it could have these numbers
thrown out by a federal court, the North Carolina
seat would shift to Utah.

A three-judge panel rejected Utah’s arguments
that imputed numbers amounted to statistical
sampling as prohibited by the 1999
Supreme Court decision. The panel concluded
that it was common sense to realize that census
takers would not be able to count every person
and that reasonable alternatives needed to be
employed to fill in the missing numbers. The
actual enumeration required by the Census
Clause did not mean that the court should
reduce the number of persons imputed to
households to zero. The imputation method was
on the whole fair because it was adjusted for
local neighborhood demographics and it was
employed only after census takers failed on
repeated attempts to contact the households in
question. Therefore, the panel ruled that reducing
the number to zero would be “inconsistent
with the constitutional imperative of actual enumeration,”
for actual residents would not be
counted.

In Utah v. Evans, 536 U.S. 452, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002), the Supreme Court affirmed the lower court ruling. The Court, in a 5–4 decision, rejected the idea that actual enumeration under the Census Clause was intended as a description of the only methodology for counting U.S. citizens. The Court pointed out that an interest in accuracy was favored by the Census Bureau, which used imputation as a last resort only after other methods had failed The majority also decided that this method, used as a last resort, was not the same as sampling. Justice STEPHEN BREYER noted that “sampling seeks to extrapolate the features of a large population from a small one, but the Bureau’s imputation process sought simply to fill in missing data as part of an effort to count individuals one by one.” Moreover, the imputation method was not the equivalent of statistical sampling because the two methods were viewed as distinctly different when an amendment to the Census Act was passed in 1958.

FURTHER READINGS
“‘Advice’ from the Very Beginning, ‘Consent’When the End
Is Achieved.” 1989. American Journal of International
Law 83 (October).
Corpus Juris Secundum United States, vol. 91, secs. 11–12.
Cox, Gary W., and Jonathan N. Katz. 2002. Elbridge Gerry’s
Salamander: The Electoral Consequences of the Reapportionment
Revolution. New York: Cambridge Univ. Press.
“Fair Representation: Meeting the Ideal of One Man, One
Vote.” 1984. Michigan Law Review 82 (February).
The Federalist Nos. 37, 38, 52, 54, 56, 57, 58, 62, and 63.
1787–88.
“A House of Our Own or a House We’ve Outgrown? An
Argument for Increasing the Size of the House of Representatives.”
Columbia Journal of Law and Social Problems
25.
“Lies, Damn Lies and Statistics: Dispelling Some Myths Surrounding
the United States Census.” 1990. Detroit College
of Law Review 1990 (spring).
“Montana’s Lost Seats Begs Issue.” 1992. National Law Journal
(March 2).
“Politics and Purpose: Hide and Seek in the Gerrymandering
Thicket after Davis v. Bandmer.” 1987. University of
Pennsylvania Law Review 136 (November).
“Reapportionment: The Supreme Court Searches for Standards.”
1989. Urban Law 21 (fall).
Scher, Richard K. 1996. Voting Rights and Democracy: The
Law and Politics of Districting. San Francisco: Wadsworth.
“The Thickest Thicket: Partisan Gerrymandering and Judicial
Regulation of Politics.” 1987. Columbia Law Review
87 (November).
“Understanding Dworkin.” 1993. George Mason Independent
Law Review 1 (spring).
Yarbrough, Tinsley E. 2002. Race and Redistricting: The
Shaw-Cromartie Cases. Lawrence: Univ. Press of Kansas.

CROSS-REFERENCES
Congress of the United States; Voting.